*Peri Leanna Schuster
Introduction
On September 1, 2021, the Texas legislature enacted Senate Bill 8 (S.B. 8), a new law that restricts the right to an abortion six weeks after pregnancy,[1] contravening precedent of the United States Supreme Court.[2] The Texas legislature drafted S.B. 8 to avoid enforcement by state actors.[3] S.B. 8 specifically states that:
[a]ny person, other than an officer or employee of a state or local government entity in this state, may bring a civil action against any person who: (1) performs or induces an abortion . . . [or] (2) knowingly . . . aids or abets the performance or inducement of an abortion . . . .[4]
Instead of enforcing the law themselves, Texas lawmakers financially incentivize enforcement through private civil action or “citizen bounty hunters.”[5] S.B. 8 awards bounty hunters who prevail in a civil action “(1) injunctive relief . . . (2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced . . . and (3) costs and attorney’s fees.”[6] This private enforcement scheme allows Texas to completely avoid judicial review.[7]
State legislatures across the United States are taking note of this method to implement their respective political agendas, not only to restrict abortion, but also to avoid judicial review.[8] Citizens rely on the judicial system to enforce equal protection under the law. S.B. 8 has broad implications and consequences because, under this legislative scheme, citizens can no longer depend on the courts to provide redress from violations of fundamental rights.[9]
S.B. 8: Evading Judicial Review
The Texas legislature carefully crafted S.B. 8 to rely on a highly unusual enforcement mechanism.[10] First, no state officer or state employee is permitted to enforce S.B. 8.[11] Instead, only private parties are allowed to file suit against anyone who “aids or abets the performance or inducement” of an abortion after six weeks.[12] Plaintiffs are awarded a minimum $10,000 bounty plus legal fees if they prevail in court.[13]
Secondly, because state officials cannot enforce S.B. 8, it is unclear who an objecting party should sue to challenge the law.[14] The doctrine of sovereign immunity prevents a private party from suing states unless a state actor violates a party’s constitutional rights by enforcing an unconstitutional state statute.[15] As Justice Sonia Sotomayor noted, “[t]he [Texas] Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.”[16] Thus, a private party seeking to challenge the constitutionality of S.B. 8 cannot sue the state government or an enforcing officer.[17] Instead, a private party can only counter-sue the private party who is suing them.[18] Under this scheme, Texas has potentially established a method for evading judicial review by eliminating enforcement from a state actor and solely relying on enforcement by private parties.
Implications Across the United States
Other states are starting to utilize civilian lawsuit provisions to avoid state responsibility and judicial accountability.[19] This is more than just a threat to abortion rights; it is a threat to all constitutional rights held by individuals. For example, two states, Florida and Tennessee, have already implemented the Texas scheme to impede transgender rights.[20]
In July 2021, Florida enacted Senate Bill 1028 (S.B. 1028), or the “Fairness in Women’s Sports Act.”[21] S.B. 1028 requires that “teams or sports . . . be expressly designated . . . based on the biological sex at birth.”[22] Specifically, S.B. 1028 defines “sex” as the “student’s biological sex [designated] on the student’s official birth certificate.”[23] This definition disregards the individual’s claimed gender identity and focuses solely on the student’s assigned gender at birth.[24] S.B. 1028 allows students and parents to sue schools that permit transgender girls to compete in girls’ sports.[25] Opponents of the bill claim that this is an effort to target the already marginalized transgender community.[26]
Similarly, in July 2021, Tennessee enacted House Bill 1233 (H.B. 1233), or the “Tennessee Accommodations for All Children Act.”[27] H.B.1233 requires schools to accommodate individuals who submit written requests stating that they are unwilling to access multi-occupancy bathrooms, locker rooms, shower rooms, and sleeping quarters.[28] If an individual encounters someone of the opposite sex in one of these designated areas, they can sue the school for damages.[29] H.B. 1233 defines “sex” as “a person’s immutable biological sex as determined by anatomy and genetics existing at the time of birth[,]” rather than gender identity.[30] Thus, forcing transgender individuals to use facilities that coincide with their assigned sex at birth[31] encourages stigma surrounding transgender individuals.[32]
S.B. 1028 and H.B. 1233 are examples of states adopting Texas’s scheme by financially incentivizing individuals to take action to enforce constitutionally questionable laws.[33] These laws are specifically designed to evade judicial review.[34] Anyone who seeks to challenge these laws cannot sue the state or an enforcing officer.[35] Therefore, individuals are left without a legal remedy.
Conclusion
Legal scholars predict that state lawmakers will continue to utilize civilian lawsuit provisions in an attempt to evade judicial review.[36] Utilizing private bounties to incentivize such private enforcement could even encourage the “reporting [of] immigrants living in the country illegally, violations of restrictive voting laws[,] or the teaching of critical race theory in K-12 schools . . . .”[37] The Supreme Court has yet to rule on the constitutionality of S.B. 8, allowing the law to persist. S.B. 8 and its implications pose a threat to citizens who rely on the protections provided to them under the Constitution and federal law. The Supreme Court should strike down S.B. 8. and explicitly convey to state legislatures that enhancing political agendas through civilian enforcement provisions is impermissible and unconstitutional. As states continue to craft schemes to evade federal law, the penumbra of rights afforded to individuals have lost significant value under the Fourteenth Amendment.
*Peri Leanna Schuster is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Peri also serves as the Vice President of the Immigration Law Association and formerly served as a law scholar for Professor Sipe’s Civil Procedure I class. Currently, Peri is interning for Judge Lydia Griggsby at the United States District Court for the District of Maryland.
[1] Texas Heartbeat Act of 2021, Tex. Health & Safety Code Ann. § 171.208 (West 2021).
[2] See Roe v. Wade, 410 U.S. 113, 164–65 (1973) (holding a state cannot regulate abortion prior to viability); see also Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992) (under “the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.”).
[3] Ian Millhiser, The Staggering Implications of the Supreme Court’s Texas Anti-Abortion Ruling, Vox (Sept. 2, 2021, 2:30 PM), https://www.vox.com/22653779/supreme-court-abortion-texas-sb8-whole-womans-health-jackson-roe-wade.
[4] Health & Safety § 171.208(a).
[5] Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2499 (2021) (Sotomayor, J., dissenting) (referring to the law’s use of private enforcement as “citizen bounty hunters”).
[6] Health & Safety § 171.208(b).
[7] See Christine Vestal, Citizen Enforcement of Texas Abortion Ban Could Spread to Other Laws, PEW (Sept. 23, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/09/23/citizen-enforcement-of-texas-abortion-ban-could-spread-to-other-laws.
[8] See Fairness in Women’s Sports Act of 2021, Fla. Stat. Ann. § 1006.205 (West 2021) (allowing individuals to sue schools that permit transgender girls to compete in girls’ sports); see also Tennessee Accommodations for All Children Act,Tenn. Code Ann. § 49-2-801–05 (West 2021) (allowing students to sue schools that don’t accommodate individuals who are unwilling to access specific multi-occupancy locations).
[9] See Andrew Koppelman, The Supreme Court’s Texas Abortion Decision is a Threat to Constitutional Rights (All of Them), The Hill (Sept. 7, 2021, 7:00 AM), https://thehill.com/opinion/judiciary/571003-the-supreme-courts-texas-abortion-decision-is-a-threat-to-constitutional.
[10] See Millhiser, supra note 3.
[11] See Texas Heartbeat Act of 2021, Tex. Health & Safety Code Ann. § 171.208(h) (West 2021).
[12] Id. § 171.208(a)(2).
[13] See id. § 171.208(b).
[14] See Millhiser, supra note 3.
[15] See id.; see also Ex parte Young, 209 U.S. 123, 159–60 (1908) (holding that a private party directly harmed by a state’s unconstitutional statute can sue the enforcing state actor to block a state law).
[16] Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2498 (2021) (Sotomayor, J., dissenting).
[17] See Vestal, supra note 7.
[18] See id.; Health & Safety § 171.208(a).
[19] See Millhiser, supra note 3.
[20] See Vestal, supra note 7.
[21] Fairness in Women’s Sports Act of 2021, Fla. Stat. Ann. § 1006.205 (West 2021).
[22] Id. § 1006.205(3) (emphasis added).
[23] Id. § 1006.205(3)(d).
[24] See Vestal, supra note 7.
[25] See id. § 1006.205(4).
[26] See Leslie Postal, Florida House Votes to Ban Transgender Females from Girls’, Women’s School Sports, Orlando Sentinel (Apr. 14, 2021, 6:06 PM), https://www.orlandosentinel.com/news/education/os-ne-transgender-sports-bill-debate-20210414-tjs3dhnrxjg2tj3hf2j4c53y44-story.html.
[27] Tennessee Accommodations for All Children Act, Tenn. Code Ann. § 49-2-801–05 (West 2021).
[28] See id. § 49-2-803.
[29] See id. § 49-2-801–05.
[30] Id. § 49-2-802 (emphasis added).
[31] See Yue Stella Yu, New Tennessee Bill Would Let Students Refuse to Share Bathrooms with Transgender Peers, Tennessean. (Mar. 10, 2021, 6:11 AM), https://www.tennessean.com/story/news/politics/2021/03/10/tennessee-legislature-consider-new-bathroom-bill/6929804002/.
[32] Id.
[33] See Vestal, supra note 7.
[34] See id.
[35] See Millhiser, supra note 3.
[36] See Vestal, supra note 7.
[37] Id.
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